Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle. Welcome back for another Legal Tea episode today, episode one hundred and twenty two – and happy December! Where has this year gone? I feel like we all say that every year, which is probably a reminder that we enjoy the little moments – because time sure does fly. Anyway, today’s topic is a current trend … on this type of episode, we dive into something in the current time or that I’ve stumbled across that is pertinent to my little estate and elder law world. Well, today’s episode, as I shared a little hint at the end of last week’s episode, is inspired by one of my teammates who, in his free time, enjoys playing video games. A few weeks ago, he was telling me about a game he was playing called Starfield and how in it, there’s a level that is called Last Will and Testament Quest.
According to Gamer.com, the level basically centers around you, the game player, finding someone’s Will because, in the game, you learn that the person that passed away left a house, among other things, and they do not have known heirs/known family. So, the quest is about finding their Will to see “who” the beneficiary is and “who” should really own this house that was left. Well, a little insider secret, according to Gamer.com, there IS a Will – and that’s what the quest is about. First, seeing if they left a Will and second, finding the Will. Anyway, so my team member was telling me about this level and said, “You should do an episode on your podcast about what happens if an estate plan is lost or can’t be found!” So, that’s exactly what we’re going to do – inspired by this Starfield “Last Will and Testament” quest, and totally why I’m counting it as a “current trends” episode, let’s talk about what happens if an estate plan is lost or can’t be found!
So, first and foremost, I think we should talk about whether estate plans get recorded or filed anywhere while you’re living. SOME states do, SOME states don’t. Like, I’m based in Indiana and we do not have to record or file estate plans with the State or Court … or anything like that. And if you’re a long-time Legal Tea Listener, I did a “cautionary tale” episode (for reference, it was episode eighteen) a while ago about a real-life client that had passed away and their family could not find their mother’s estate plan at all. I had to get the Court involved and it was a WHOLE thing, so trust me, people, this “quest” on Starfield actually happens in real-life too! Anyway, so yeah – here in Indiana, we don’t record or file documents anywhere. If I went to the Courthouse with my clients’ estate plans, the Courthouse staff would be like, “Go home, Jenny – we don’t do that here!” BUT, in other states, it MAY be required to file or record estate documents, so just check with an attorney in your home state!
Now, something else on this topic is kind of what we talked about in our last Legal Tea episode (which was a cautionary tale type of episode) where a woman held property with her deceased mother. Her mother died in 2011 and because she did not probate her mother’s Will within 3 years of her mother’s passing, which is an Indiana specific thing/law, her Will became essentially a moot point and now things are going totally sideways. I encourage you to listen to that episode. So, on this topic, when someone passes away, it is VITAL to find an estate attorney and confirm whether anything needs to be done. Had the woman done that, the attorney would have immediately been like, “Okay, does your mother have a Will and if so, let’s find it!” I say this because sometimes families, after someone passes away, doesn’t know where their deceased loved one left their estate plan. Is it in a bank safety deposit box? Is it in a safe in the home? Is it in the freezer (my Grandma used to put important stuff in the freezer!)? WHERE is it? In those cases, those families are embarking on a real-life Starfield Last Will and Testament quest, right?
Well, let’s talk about that real-life story that I referenced – and what happened there? And WHAT you, my friends, can do to avoid this happening to your family! Alrighty, here we go … so, one day, a paralegal grabbed me because she “just took a weird call” and wanted to make sure we could even help the prospective client. I was like, “Okay – lay it on me. What’s going on?” She proceeds to tell me that the person on the phone shared that their family member passed away, had an estate plan (specifically a Trust), that assets are held inside the name of the Trust, but no one can find the Trust document. They’ve searched high and low, and it’s nowhere to be found.
Before I really developed a plan of attack, I needed some more information from the prospective client so I could make their upcoming first meeting with me very productive. Mainly, I needed to know “who” was involved – family member-wise – as well as asking for someone to send me some documentation showing what assets were inside the name of this missing Trust. After I gathered family information and the caller sent me some documents … I started connecting the dots. Let’s see if you can hang with me on this one—
The Trust was actually the caller’s grandmother’s Trust – the grandmother had passed away over 10 years ago. The grandmother had one child – who was the caller’s Dad. The caller’s Dad passed away in 2021, and the caller was administering her father’s estate when she located the assets that were held in her grandmother’s Trust. So, let’s do it like this … for my more-visual listeners:
Think of grandma at the very top tier – she passed away in the early 2000s. Grandma had the one child, who passed away in 2021. Imagine him as the second tier. The final and third tier represents the grandmother’s child’s children (or her grandchildren, right?), and that is the caller + her 3 siblings.
So, I had conducted my pre-meeting research and I was ready for the meeting with the prospect – and I remember telling my co-worker, who was joining me for the meeting, that I hoped the prospect was a reasonable person because there’s a legal process that we have to go through … and it won’t be easy … it won’t be fun … but it’s the most appropriate course of action.
You see, the financial institution that was holding the assets inside grandma’s Trust stated they “needed something showing the granddaughter/the caller was now the Trustee of grandma’s Trust.” The issue with that sentence is that it minimizes the appropriate process – I think the caller thought I could just whip up a document that states, “Okay, now this person is the successor trustee and things are fine and dandy!” If I did that, I’d be taking on liability – like, what if grandma’s trust put a bank as a corporate trustee, the bank should have earned compensation serving in that role, or something – who knows! The dang document was lost, it was missing…
So, as I explained to the granddaughter, I can’t just willy-nilly appoint someone – I’m not THAT cool and powerful. Attorneys have a lot of power in the legal system, but not THAT much power. So, at this point (and I shared this with her), I firmly believe that the only “person” that has the authority to appoint a successor trustee (without a Trust document) would be to involve the Court and have the Judge appoint “who” it is. Annoying? Yes, for the family. Cumbersome? Yes. Was it the best solution? Yep.
I proposed to the granddaughter that we do two things – 1) we get a probate estate opened for grandma and 2) once the probate estate is opened for grandma, ask the Court to make the Trust assets payable to grandma’s estate. After all my research, there may have been ways to do it an easier way, but what I was most concerned about was the liability on the family – the granddaughter especially. Like, what if the Trust gets found 20 years later (somehow, some way) and the Trust beneficiary was a church, a charity, someone else besides the family…
I told the granddaughter that there are probably some ways that we could have taken the cheap/easy way, thrown together an agreement between all the parties, kept the Court out of the picture, etc., but if it were my family, this is the path I would recommend. You see – as much as I don’t like getting the Court involved, here there are two advantages in doing so:
1. First, part of the probate process is to publish “notice” of the estate “to the world” in a newspaper – so what does that mean? Going through a more formal process will start tolling the statute of limitations on anyone trying to kick up a fuss later – as in, say in my example earlier, what if grandma did put her church as her Trust’s beneficiary and they happen to find a copy of her Trust? Ideally, the statute of limitations has tolled and they would be essentially … S.O.L. You know, *beep*out of luck.
2. Second, running it through the Court will keep things CLEANER between grandma’s estate … then paying her son’s estate … then the son’s estate paying the son’s 4 children. Because the Court is involved and me, the attorney, is involved, things will be kept on the up-and-up more to, again, make sure everyone is on the same page. Not to mention, we’ll have Court Orders to provide to the financial institutions to force them to comply. Again, cleanliness…
So that’s what we did – the client (good client!) listened to my recommendation – after all, she didn’t have to. She could’ve said, “Jenny, I hear ya – but I think we are going to just do the ‘cheap and easy’ option and have you do an agreement between all of us.” If they chose that, I would have instantly started papering the heck out of their file – like, “I recommended they do Y, and they chose to do Z.” That way, if anything DID happen in the future, they couldn’t come back on me! But thankfully, she recognized that the involvement of the Court was a GOOD thing, formalized things, and ultimately gave the family peace of mind knowing finally after many years since grandma passed, Ts were crossed and Is were dotted.
So, my friends, it’s time for you to #DoYourEstatePlan, let’s be sure it doesn’t get lost. There are a few things that you can do after your estate plan is created to ensure your family is not in a similar boat. First, put your documents in a SAFE place – but also put them in a place that is, sort of, intuitive for your family (if you choose not to tell your family where you’ve put your documents). Oftentimes, I recommend a fire proof safe – the investment in something like that will be worth it. Along those same lines, I do NOT recommend a safety deposit box at a bank – banks get really weird when people die and oftentimes, don’t let the family access the box. Second, perhaps make digital versions of your documents and store them safety on your computer (PS – If this route is a thing for you, do make sure your family knows how to get on/login to your computer if you were to pass….) Third, giving copies of your documents to your “first” person in charge is both a good and bad thing – just depends on your desire. Good thing because they’d, of course, have a copy of your documents if something were to happen to your originals. It’s sometimes “bad” if you were to update your documents at any point – you’d have to remember “who” has copies of your documents and to get them replaced. The last thing you want is to give someone a copy, you update them, not give them an updated version, and they inadvertently operate by outdated versions.
This was a good episode, huh! So, thanks to my team member and his video game for inspiring this episode and advocating for this conversation! Alrighty, I’m out of time, so let’s wrap this episode up – next week, we’re back to the “celebrity estate planning” type of episode – and during that episode, we are going to dive into what happened estate-wise following the passing of ol’ David Bowie. Definitely tune in next week for an episode on his estate – it’s a good one! Talk to you then and stay well!